November 2020 Oregon HR Legal Updates

Oregon Voters Approve Psilocybin Usage and Minimize Penalties for Drug Possession

What happened?
Voters in Oregon have passed Measures 109 and 110.

What are the details?
Measure 109:
The Oregon Health Authority (OHA) will be responsible for establishing the program and creating regulations. OHA has a two-year period to develop the program. An Oregon Psilocybin Advisory Board (OPAB) will advise the OHA. Residents will be allowed to purchase, possess, and consume psilocybin at a psilocybin service center and under the supervision of a psilocybin service facilitator after undergoing a preparation session. Under Measure 109, the OHA determines who is eligible to be licensed as a facilitator, determine what qualifications, education, training, and exams are needed, and create a code of professional conduct for facilitators. OHA would set psilocybin dosage standards and labeling and packaging rules.

Currently Measure 109 does not address how this will impact workplace practices. Guidance is expected over the next two years before the measure goes fully into effect.

Measure 110:
While Measure 110 severely reduces the penalties for individuals found to be in possession of small amounts of certain drugs that were previously illegal, it also mandates establishment/funding of “addiction recovery centers” (centers) within each existing coordinated care organization service area by October 1, 2021. Centers provide drug users with triage, health assessments, treatment, and recovery services. To fund centers, the measure dedicates all marijuana tax revenue above $11,250,000 quarterly, legislative appropriations, and any savings from reductions in arrests, incarceration, and supervision resulting from the measure.

Interestingly, Measure 110 has created a rebuttable presumption for those who require licenses to work in the state of Oregon. The measure amends ORS 670.280 to create a “rebuttable presumption” that an applicant’s or licensee’s existing or prior conviction of a Class E violation “does not” render the person unfit to obtain or hold a license. Measure 110 also amends ORS 670.280 to create a “rebuttable presumption” that such a conviction also “is not related to the fitness and ability” of the applicant or licensee to engage in the activity for which the license is required.

These two measures do not interfere with an employer’s right to maintain drug free workplaces.

An article going over the changes of these two measure can be found here.

Measure 109 can be read here.

Measure 110 can be read here.

What do employers need to do?
Oregon employers should be aware of these changes and know that it does not impact their current ability to regulate controlled substances in the workplace.

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Oregon OSHA Issues COVID-19 Regulations

What happened?

Oregon OSHA’s Infectious Disease Rulemaking Advisory Committee has issued significant restrictions on multiple industries and requirements for employers with differences between employers of varying sizes.

What are the details?
There are four requirements that all employers, regardless of industry, will need to adhere to. The four requirements are:

  1. Exposure risk assessment
  2. Infection control plan
  3. Training
  4. COVID-19 infection notification process

The following page numbers will be referring to the pages of the Oregon OSHA document that was released to outline all of these rules, found here.

Exposure Risk Assessment:
Pg. 9. “(g) Exposure risk assessment. No later than December 7, 2020, all employers must conduct a COVID-19 exposure risk assessment, without regard to the use of personal protective equipment, masks, face coverings, or face shields. If an employer has multiple facilities that are substantially similar, its assessment may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the assessment.”

Note: Oregon OSHA has provided a template for employers to fill out that will satisfy the requirement. An additional requirement for the client to keep in mind:

“Each employer with more than ten employees statewide (including temporary and part-time workers) or that is covered by (1)(c) of this rule (workplaces at exceptional risk) must record their COVID-19 exposure risk assessment in writing by documenting the following information:

(i) The name(s), job title(s), and contact information of the person(s)

who performed the exposure risk assessment;

(ii) The date the exposure risk assessment was completed;

(iii) The employee job classifications that were evaluated; and

(iv) A summary of the employer’s answers to each of the applicable

exposure risk assessment questions in this subsection.”

Infection Control Plan:
Pg. 11 “(h) Infection control plan. No later than December 7, 2020, all employers must establish and implement an infection control plan based on the risks identified in subsection (3)(g) that implements the controls identified in (3)(g)(C)(xiii) including, but not limited to, ventilation, staggered shifts, redesigning the workplace to accommodate physical distancing, reducing use of shared surfaces and tools, limiting the number of employees and other individuals in work areas, personal protective equipment, etc. If an employer has multiple facilities that are substantially similar, its infection control plan may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the plan. Employers may also rely upon materials developed by associations, licensing agencies, and franchisors to assist with compliance and provided that mechanisms for appropriate employee feedback and involvement are provided.”

Employers with 10 employees statewide will need to keep the control plan in writing and ensure that a copy is accessible to employees at their workplace.

The actual requirements of the Infection Control Plan are as follows:

“(i) A list of all job assignments or worker tasks requiring the use of personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19;

(ii) The procedures the employer will use to ensure that there is an adequate supply of masks, face coverings, or face shields and personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19;

(iii) A list and description of the specific hazard control measures that the employer installed, implemented, or developed to minimize employee exposure to COVID-19;

(iv) A description of the employer’s COVID-19 mask, face covering, and face shield requirements at the workplace, and the method of informing individuals entering the workplace where such source control is required;

(v) The procedures the employer will use to communicate with its employees and other employers in multi-employer worksites regarding an employee’s exposure to an individual known or suspected to be infected with COVID-19 to whom other workers may have been exposed. This includes the communication to individuals identified through COVID-19 contact tracing and general communication to the workplace at large; and

(vi) The procedures the employer will use to provide its workers with the initial employee information and training required by this rule.”

Note: While it is not currently available, Oregon OSHA has stated that it will make samples of Infection Control Plans available to employers to assist them in completing the task.

Training:

Pg. 12.  “Employee information and training. No later than December 21, 2020, employers must provide workers with information and training regarding COVID-19. This information and training can be provided remotely or using computer-based models but must be provided in a manner and language understood by the affected workers. Employers must ensure that the training provides an opportunity for feedback from employees about the topics covered in the training, which must include at least the following elements:

(A) Physical distancing requirements as they apply to the employee’s workplace and job function(s);

(B) Mask, face covering, or face shield requirements as they apply to the employee’s workplace and job function(s);

(C) COVID-19 sanitation requirements as they apply to the employee’s workplace and job function(s);

(D) COVID-19 signs and symptom reporting procedures that apply to the employee’s workplace;

(E) COVID-19 infection notification process as required by this rule;

(F) Medical removal as required by this rule;

(G) The characteristics and methods of transmission of the SARS-CoV-2 virus

(H) The symptoms of the COVID-19 disease;

(I) The ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus; and

(J) Safe and healthy work practices and control measures, including but not limited to, physical distancing, sanitation and disinfection practices.”

Note: Oregon OSHA will be providing training materials that can be used to complete the training requirements. Additionally, if the client has already provided training covering the above topics, they will not be required to administer it again, but they will need to provide training on any of the topics not covered by the previous training.

COVID-19 Infection Notification Process:
Employers will need to set up a process to notify employees that have had a work-related contract with an individual who has tested positive for COVID-19, as well as to notify affected employees that an individual who was present in the facility has confirmed COVID-19. The requirement has two parts:

(A) A mechanism for notifying both exposed and affected employees within 24 hours of the employer being made aware that an individual with COVID-19 was present in the workplace while infectious or otherwise may have had work-related contact with its employee(s) while infectious; and

(B) This notification process must be established and implemented in accordance with all applicable federal and Oregon laws and regulations.

Note: Oregon OSHA has issued a model notice policy that employers may use. 

In addition to the above requirements, Oregon OSHA had issued additional requirements for the above requirements if the employer works with any of the following activities:

“(A) Direct patient care;

(B) Environmental decontamination services in a healthcare setting;

(C) Aerosol-generating healthcare or postmortem procedures;

(D) Direct client service in residential care or assisted living facilities;

(E) Emergency first responder activities;

(F) Personal care activities that involve very close contact with an individual, such as toileting or bathing; or

(G) Handling, packaging, cleaning, processing, or transporting human remains or human tissue specimens or laboratory cultures collected from an individual known or suspected to be infected with COVID-19”

Oregon OSHA also included industry specific regulations that can be found on the document linked above:

  1. Restaurants, Bars, Brewpubs, and Public Tasting Rooms at Breweries, Wineries, and Distilleries
  2. Retail Stores
  3. Outdoor/Indoor Markets
  4. Personal Services Providers
  5. Construction Operations
  6. Indoor and Outdoor Entertainment Facilities
  7. Outdoor Recreation Organizations
  8. Transit Agencies
  9. Collegiate, Semi-Professional, and Minor League Sports
  10. Professional and PAC-12 Sports
  11. Licensed Swimming Pools, Licensed Spa Pools, and Sports Courts Mandatory Workplace Guidance
  12. Fitness-Related Organizations
  13. K-12 Educational Institutions (Public or Private)
  14. Early Education Providers
  15. Institutions of Higher Education (Public or Private)
  16. Veterinary Clinics
  17. Fire Service and EMS
  18. Law Enforcement
  19. Jails and Custodial Institutions

The example Risk Exposure Assessment can be found here, at the bottom of the webpage under “Documents.”

The model notice policy can be found here.

Additional information, forms, and model notices will be posted here.

What do employers need to do?
All employers with employees in Oregon should review the above information and begin the process of completing the requirements, as some may take time and planning to complete.

September 2020 Oregon HR Legal Updates

New Oregon Act Restrict Signed Agreements and Strengthens Anti-Discrimination Requirements

What happened?
Oregon has passed new legislation, the Workplace Fairness Act (WFA), that creates new restrictions on signed agreements employees can be required to sign and creates new requirements for employer non-discrimination and non-harassment policies.

What are the details?
The WFA creates two sets of rules that will be applicable to employers in the state of Oregon. The first is a rule prohibiting the use of specific signed agreements.  The second is a new set of expectations regarding employer’s anti-discrimination and anti-harassment policies.  

Signed Agreements

The WFA will remove the ability of employers to require an employee to enter into any agreement with a nondisclosure or nondisparagement provision if it has the purpose or effect of preventing the employee from disclosing or discussing conduct constituting discrimination, harassment, or sexual assault.

However, should an employee who claims to be aggrieved by discrimination, harassment, or sexual assault request to enter into a settlement, separation, or severance agreement that contains a nondisclosure, nondisparagement, or no-rehire provision, it is permissible under the WFA. The employer is required to provide at least seven days to the employee to revoke the agreement, with the agreement not being effective until after this revocation period.

Additionally, employers may void severance agreements for managers who have violated the company’s discrimination and/or harassment policies if the violation were a significant contributing factor to the manager’s separation from employment.

Anti-Harassment and Anti-Discrimination

The WFA will require employers to include a written anti-discrimination and anti-harassment policy. This policy must contain procedures and practices intended to reduce and prevent discrimination under Oregon’s protected categories. The policy must include the following:

  • A description of the process to complain about prohibited conduct, including suspected discrimination, harassment, or sexual assault;
  • Identify who in the organization the violations may be reports to, including a primary and secondary individual;
  • Notify employees that they have five years from the date of the prohibited conduct to pursue legal action;
  • State that an employer may not coerce or require an employee into a nondisclosure or nondisparagement agreement, as well as defining those terms;
  • Explain that an employee does retain their right to request those agreements with a seven-day grace period, if an employee should want to enter into them; and
  • Include a statement that advises employers and employees to document any incidents involving unlawful discrimination and sexual assault.

Note: Employers must give a copy of their anti-harassment and anti-discrimination policies to new employees, and to individuals who make a complaint about a prohibited discrimination or harassment.

Finally, the WFA increases (as mentioned above) the statute of limitations to up to five years for any prohibited behaviors listed above. Law firms operating in Oregon are recommending employers begin holding onto employment records to match this duration in order to provide any evidence they may have on hand, should cases come up years down the road.

The WFA legislation can be found online here.

The Oregon Bureau of Labor and Industries has provided a template policy for employers, which can be found here.

What do employers need to do?
Oregon employers should update their policies regarding signed agreements, anti-discrimination, and anti-harassment. Employers should also look into policies expanding how long they hold on to employment records, in order to protect against the five-year statute of limitations.

August 2020 Oregon HR Legal Updates

Oregon OSHA Releases Draft COVID-19 Temporary Standard

What happened?
On August 17, 2020, the Oregon Occupational Safety and Health Administration (Oregon OSHA), the state plan responsible for overseeing workplace safety and health in the state of Oregon, release a draft COVID-19 temporary standard.

What are the details?
The temporary standard begins by breaking the workforce down into three segments: (1) all workplaces; (2) workplaces with a “heightened risk” of exposure; and (3) workplaces with an “exceptional risk” of exposure. The standard then layers requirements on each segment with additional workplace safety requirements for employees at higher risk of exposure to COVID-19.  

“Workplaces at heightened risk” of exposure would include establishments where employees “perform a close-in tactile person-to-person work activity,” including “any job duty or work operation that requires an employee to be within six feet of another individual for longer than 15 minutes and that includes the direct touching of the individual with the employee’s hands or by the use of instruments or tools.” Examples include “tattooing, massage, hairdressers, barbers, beauticians, and make-up artists.”

“Workplaces at exceptional risk” of exposure would include those that “are involved in at least one of the following:

  • Direct patient care in a healthcare setting;
    • Aerosol-generating healthcare or postmortem procedures;
    • Emergency first responder activities;
    • Handling, packaging, cleaning, processing, or transporting of ‘contaminated materials’ as defined by this rule; or
    • Handling, packaging, cleaning, processing, or transporting human remains or human tissue specimens or laboratory cultures collected from an individual suspected or known to have COVID-19.”

A shorthand list of what topics are impacted in all workplaces is as follows:

  • Physical distancing or droplet buffer (face coverings)
    • Motor Vehicle Travel
    • Face Coverings
    • Sanitation
    • Physical Distancing Officer
    • Building operators
    • Posting requirements – new “COVID-19 Hazards Poster”
    • Employee training
    • Medical removal and mandatory two-week paid leave provision A more detailed description of each change can be found in this article.

Oregon has created a webpage with many resources related to these potential regulations.

What do employers need to do?
Employers should review the changes above and begin to think of policy changes that may need to be made should these rules be made official.

July 2020 Oregon HR Legal Updates

Summary of Laws with Upcoming Effective Dates

Nondisclosure Agreement
Effective October 1, 2020, employers are restricted from entering into nondisclosure or nondisparagement agreements at the time of hiring and during settlement and severance negotiations that prevent the employee from disclosing or discussing discrimination or sexual assault. However, such provisions are permitted when an aggrieved employee voluntarily requests to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement and/or if an employer makes a good faith determination that an employee has engaged in discriminatory conduct prohibited by Oregon law, including sexual assault.

Anti-Discrimination Policy
Effective October 1, 2020, employers are required to adopt an anti-discrimination policy, make it available to employees within the workplace, and provide a copy to new hires and to employees who make a complaint about prohibited discrimination or harassment. The policy must include:

  • A process for employees to report prohibited conduct
  • Identification of the person(s) responsible for receiving complaints, including an alternate person
  • The five-year statute of limitation for bringing a claim of discrimination or sexual assault
  • A statement that the employer may not require or coerce employees to sign a nondisclosure or nondisparagement agreement, including a description of the meaning of those terms
  • An explanation that an aggrieved employee may voluntarily request to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement
  • A statement advising employers and employees to document incidents of unlawful discrimination or sexual assault

The Oregon Bureau of Labor & Industries’ site contains a model policy for employers to use.

June 2020 Oregon HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Scheduling Law
Effective July 1, 2020, covered employers must post the written work schedule at least 14 calendar days (previously seven calendar days) before the first day of the work schedule. Covered employers are retail, hospitality, and food services establishments with 500 or more employees worldwide, including those that are part of a chain.

Nondisclosure Agreement
Effective October 1, 2020, employers are restricted from entering into nondisclosure or nondisparagement agreements at the time of hiring and during settlement and severance negotiations that prevent the employee from disclosing or discussing discrimination or sexual assault. However, such provisions are permitted when an aggrieved employee voluntarily requests to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement and/or if an employer makes a good faith determination that an employee has engaged in discriminatory conduct prohibited by Oregon law, including sexual assault.

Anti-Discrimination Policy
Effective October 1, 2020, employers are required to adopt an anti-discrimination policy, make it available to employees within the workplace, and provide a copy to new hires and to employees who make a complaint about prohibited discrimination or harassment. The policy must include:

  • A process for employees to report prohibited conduct
  • Identification of the person(s) responsible for receiving complaints, including an alternate person
  • The five-year statute of limitation for bringing a claim of discrimination or sexual assault
  • A statement that the employer may not require or coerce employees to sign a nondisclosure or nondisparagement agreement, including a description of the meaning of those terms
  • An explanation that an aggrieved employee may voluntarily request to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement
  • A statement advising employers and employees to document incidents of unlawful discrimination or sexual assault

The Oregon Bureau of Labor and Industries’ site contains a model policy for employers to use.